Barry R. Hasche v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 29 2016, 9:00 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lawrence M. Hansen Gregory F. Zoeller
Hansen Law Firm, LLC Attorney General of Indiana
Noblesville, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barry R. Hasche, February 29, 2016
Appellant-Defendant, Court of Appeals Case No.
29A02-1509-CR-1510
v. Appeal from the Hamilton Circuit
Court
State of Indiana, The Honorable Paul A. Felix,
Appellee-Plaintiff Judge
Trial Court Cause No.
29C01-1204-FB-3106
Bailey, Judge.
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Case Summary
[1] Barry R. Hasche (“Hasche”) challenges the probation revocation sanction
requiring that he serve 1274 previously-suspended days of a sentence for child
molesting. He presents the sole issue of whether the trial court abused its
discretion by imposing the particular sanction. We affirm.
Facts and Procedural History
[2] On August 12, 2012, Hasche pled guilty to child molesting, as a Class C
felony.1 He was sentenced to six years imprisonment, with two years as a direct
commitment to community corrections work release and four years suspended
to probation.
[3] In December of 2012, the State filed a notice of probation violation. The trial
court found that Hasche had been non-compliant with a condition of his
community corrections placement, and ordered that Hasche complete the
remainder of his executed sentence in the Indiana Department of Correction
(“the DOC”). Hasche was subsequently released from his incarceration in the
DOC and began to serve his probationary term. In October of 2014, the State
filed a second notice of probation violation, alleging that Hasche had contacted
the victim of his offense and had failed to register as a sex offender. At a
1
Ind. Code § 35-42-4-3.
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dispositional hearing conducted on March 12, 2015, the trial court ordered
Hasche to serve 186 days of his previously-suspended sentence.
[4] On June 25, 2015, the State filed a third notice of probation violation, alleging
that Hasche had failed to complete a polygraph examination and had accessed
the Internet without authorization. An evidentiary hearing was conducted on
July 30, 2015; the trial court found that Hasche had violated a condition of
probation. A dispositional hearing was conducted on August 20, 2015, at
which Hasche requested a return to work release as opposed to the DOC. His
probation was revoked and he was ordered to serve as executed time in the
DOC 1274 days previously suspended to probation. This appeal ensued.
Discussion and Decision
[5] Hasche claims that the order reinstating 1274 days of his sentence is excessive
in light of his testimony that he lacked funds for the polygraph test and that he
had accessed a gaming website as opposed to a sexually-oriented website.
According to Hasche, “it stands to reason that a maximum sentence should be
reserved for the worst of violators relative to a violation of probation.”
Appellant’s Br. At 15.
[6] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). It is within the discretion of the trial court to determine probation
conditions and to revoke probation if the conditions are violated. Id.Court of Appeals of Indiana | Memorandum Decision 29A02-1509-CR-1510 | February 29, 2016 Page 3 of 5
[7] In appeals from a trial court’s imposition of probation sanctions, we review for
an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An
abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances, or when the trial court has misinterpreted
the law. Id.[8] Probation revocation is a two-step process; first, the trial court makes a factual
determination that a violation of a condition of probation has occurred, and
second, if a violation is found, then the trial court must determine the
appropriate sanction for the violation. Id.[9] The court may impose the following sanctions for a violation:
(1) Continue the person on probation, with or without modifying or
enlarging the conditions.
(2) Extend the person’s probationary period for not more than one
(1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended
at the time of initial sentencing.
I.C. § 35-38-2-3(h). Accordingly, the trial court was authorized by statute to
impose the sanction selected for Hasche.
[10] Hasche nonetheless contends that the trial court abused its discretion. Hasche
argues that a maximum sanction is similar to a maximum sentence imposed
upon a conviction; the circumstances surrounding his violation suggest that he
is not among the worst offenders; and thus he should have received a lesser
sanction. He asks that we “modify his sentence” or remand “for further
proceedings relative to sentencing.” Appellant’s Br. at 17.
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[11] However, even if we were to credit Hasche’s explanation for his violations, we
do not conduct an independent review of probationary sanctions. In the
context of probation revocation, our supreme court has determined that the
Indiana Appellate Rule 7(B) standard for revision of inappropriate sentences “is
not the correct standard to apply when reviewing a trial court’s actions”
because the action “is not a criminal sentence as contemplated by the rule.”
Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). Rather, the standard is one of
abuse of discretion. Heaton, 984 N.E.2d at 616.
[12] Hasche violated his probation, and had done so on two prior occasions. The
trial court’s decision to impose a maximum sanction despite Hasche’s claim
that he is not an egregious offender is not an abuse of discretion.
[13] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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